Kane's job as attorney general is to enforce all laws

While she was on the campaign trail, Kathleen Kane made her position on Pennsylvania’s same-sex marriage ban quite clear. She was against it, and vowed to work toward changing the law.

At least she’s consistent.

Kane’s problem today is that she is no longer a candidate. She is the elected attorney general of Pennsylvania, the first woman and first Democrat to be so anointed by the voters, including those who differ with her stance on same-sex marriage.

Last week, no doubt inspired by the U.S. Supreme Court’s decision to knock down a crucial aspect of the federal Defense of Marriage Act, Kane announced she would not defend a similar statute in Pennsylvania.

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Just days after the high court ruling, the American Civil Liberties Union filed suit in Pennsylvania to topple the state statute that defines marriage as between one man and one woman, in the process preventing gay couples from marrying. Currently only 13 states and the District of Columbia have laws allowing gays to legally wed.

Attention quickly turned to Kane, an avowed opponent of the ban, and how she would react. We didn’t have to wait long.

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA (Defense of Marriage Act),” Kane declared in front of a cheering crowd at the National Constitution Center in Philadelphia. “I believe it to be wholly unconstitutional.”

The issue with the “Kane Mutiny” is not ethics, despite the attorney general’s protestations, or even politics, although there certainly is a political overtone since Gov. Tom Corbett, a Republican, is a supporter of the same-sex marriage ban.

Our issue with Kane is her decision to flout the traditional role and duties of her office. She believes the ban to be wholly unconstitutional. That’s fine, but the attorney general does not get to make that decision.

Laws are written by the Legislature. They are interpreted by the courts and judges – not by attorney generals, who instead are charged with enforcing them.

Kane didn’t recuse herself and hand it off to someone else, although in effect that could happen if the governor decides to use his general counsel to defend the case. Instead she made the sweeping call of saying her office would not defend the statute. So much for upholding the law.

Granted, this is a bit of a murky area. State law carries mandates that the attorney general defends the law, but also offers the possibility that the office can reach out to other attorneys in the governor’s office or other state agencies if that is deemed to be in the state’s best interest.

Kane insists she’s well within the Commonwealth Attorney’s Act in passing on defending the law.

During her campaign for attorney general, Kane suggested it would be a “dangerous proposition” for an attorney general to refuse to enforce a state law. Her response was to a question concerning another highly controversial proposal, a proposed law requiring women seeking an abortion to undergo an ultrasound. Her Democratic foe in the primary election said he would not enforce such a law. Kane demurred, saying an attorney general doesn’t have the right to choose which laws he or she enforces.

Exactly. Times have changed, apparently. Or at least Kane’s opinion has.

We hope the Pennsylvania Legislature realizes shifting public opinions on this divisive issue and approves gay-marriage laws that would overturn the state’s same-sex ban. That’s their job.